Tuesday, September 16, 2014

Our Merit Retention Decisions (Part 2)

As I wrote last time, The Florida Bar's member poll supported retention of the three Second District Court of Appeal (DCA) judges who will be on Collier voters' ballots in November. Specifically, they support retention of:
  • Chris W. Altenbernd by 95 percent.
  • Morris Silberman by 94 percent.
  • Daniel H. Sleet by 91 percent.
While Googling Judges Silberman and Sleet turned up nothing of note, I learned that Judge Altenbernd wrote the minority dissenting opinion when the majority of the Second DCA asked the Florida Supreme Court last month to rule on the constitutionality of Florida's same-sex marriage ban. I wanted to know more about this so I could decide if it was relevant to my voting decision.
Here's what I learned from “Gay Marriage Case Sent to Florida Supreme Court,” by Dara Kam, News Service of Florida, 8/28/14:
The [Second DCA's] request … puts the Florida Supreme Court in the position of deciding whether to take up the issue after five recent state and federal court decisions found that the voter-approved prohibition against same-sex marriage is unconstitutional.
The appeals court made the request in a 10-3 ruling in a case involving the divorce of Mariama Monique Changamire Shaw and Keiba Lynn Shaw, a lesbian couple married in Massachusetts in 2010. Hillsborough County Circuit Judge Laurel Lee refused to grant the couple a divorce because state law bans same-sex marriages.
The couple appealed Lee's ruling and asked the 2nd District Court of Appeal to “pass through” the case to the Supreme Court. A panel of the appellate court originally refused but, in an unusual twist, the full court revisited the case, resulting in Wednesday's ruling….
In it's opinion, the majority of the Second DCA judges decided to “pass through” the matter to the Florida Supreme Court because “the issues pending are of great public importance and will have a great effect on the proper administration of justice throughout the state.”
Judge Altenbernd, joined by two other judges, neither of whom is up for merit retention this year, dissented, writing that:
Under article V, section 3(b)(5) of the Florida Constitution, the supreme court's jurisdiction to accept cases passed through from the district courts without a disposition is restricted to a very limited group of cases. The judges of this court must certify that such a case requires “immediate” resolution and that the “order” on appeal presents issues of “great public importance” or is an order that will have "a great effect on the proper administration of justice throughout the state…. Although this case is of importance to these parties, I cannot agree that this case is a proper subject for pass through….
It is important to understand that the issue in this case is not whether Florida is constitutionally compelled to marry same-sex couples…. [T]he narrow, dispositive issue in this case is whether Florida … must give credit to these lawful out-of-state marriages for the purpose of dissolution. Given that same-sex marriages are a recent development in other states, I am not convinced that Florida's courts will be clogged in the next three years with out-of-state same-sex couples seeking dissolution. I cannot certify that this order will have “a great effect on the proper administration of justice throughout the state” requiring immediate review in the supreme court.
In addition, Altenbernd argued:
… this issue does not seem to me to be one that this court cannot handle on appeal or that we should present to the supreme court as a matter ready for immediate resolution…. I am confident that this court can ably consider this appeal and reach a proper resolution. Our decision will resolve the issue for all trial courts in Florida unless another district court disagrees with us…. This issue, unlike the constitutionality of the ban on same sex marriage, may never require the attention of the supreme court….
The Supreme Court subsequently refused to hear the case, siding with Altenbernd and his minority and no doubt disappointing gay right advocates, who (according to the Kam article) hoped the Supreme Court would take up the case and “send a signal to other appellate courts to also expedite their cases.”
Should Altenbernd's dissent in this case affect my vote on his merit retention, given that I'm a supporter of same-sex marriage and would have perferred the Supreme Court to have taken the case? After discussion at length with a close friend whose opinion I value greatly, I've concluded that it should not.
For one thing, said my friend, all Altenbernd was saying was that as a practical matter the case did not meet the Consitutional requirements for the “pass through” as it was not a matter of “great public importance” or one that will have “a great effect on the proper administration of justice throughout the state.”
Further, as Altenbernd pointed out in his dissent, no court had yet considered the constitutional arguments or made an express constitutional ruling about the legality of a Florida divorce for an out-of-state, same-sex marriage. A lower court (“This court”) should first hear those arguments and rule on the case.
And importantly, my friend said, judicial elections are nonpartisan for a reason: voters should be looking for people who will impartially interpret the law. Their personal views on social issues are beside the point.
I've decided my friend is right … although to his last point, I don't think that's how the world works anymore.
I'm not a lawyer, but after reading the majority opinion and Altenbernd's dissent, I think Altenbernd made a good case. So did all seven members of the Supreme Court, who unanimously declined to hear the case “for the reasons set forth in Judge Altenbernd's dissent” and sent the case back to the Second DCA “for further proceedings.”
So after all that, I've concluded that Judge Altenbernd's dissenting opinion in the case is NOT relevant to my decision on his merit retention.
I will vote FOR the retention of Judges Altenbernd, Silberman and Sleet on November 4.

Please share with your friends. You and they can subscribe to Sparker's Soapbox by email at www.sparkers-soapbox.blogspot.com and follow me on Facebook at www.facebook.com/sparkers.soapbox. Thank you!


  1. I appreciate the post. Just found it doing the exact same research, and after having found the same article about Altenbernd's dissenting opinion. I think you make a fair point and have put my mind at ease!

    1. Thank you for reading and sharing your thoughts,, Andrew!

  2. Hi, Andrew. I'm glad you reach the same conclusion I did.i'm just curious. What part of Florida do you live in? I am excited to know you found my blog on Google!

  3. Replies
    1. Thanks for taking the time to read and post a comment, Spyder! So glad it was helpful!

  4. I was thinking very much the way you were, right down to the issue you take with your friend's last point. I was searching online to see if there were other viewpoints that might affect my thinking. Since you were curious about how the first commenter found you on Google, I currently call Tampa home, and the search terms I used to find your post were "2nd district court of appeal retention gay." Thanks for the post!

    1. Thank you for taking the time to read and commentAnd thanks letting me know how you found me! I've been blogging for several years now but this post is the first one that I'm aware of that's reached people outside southwest Florida where I live!

  5. Thank you for this insight. I'm a Florida voter who is a member of the military currently stationed in Alaska, and this helped me to make an informed decision on my absentee ballot.

    I found your blog through a Google search on Judge Altenbernd's name.

    1. Thanks for taking the time to write AND for letting me know how you found me. I'm so excited to know I was helpful to a member of the military. Thank you so much for your service!

  6. Ah, Sarasota here.
    Hey, Sparker. Fine 2 parter. I found your writings while looking up Altenbernd. I had read part 1 and went to Teh Google to read through the dissenting opinion the lower court turned in. And, found myself settling on this 60 / 40 to keep him. His opinion was that the law forbidding SSM needed the Supremes settling the matter. (Maybe this was kicking the can down the road out of keeping his job, I don't know.)
    I am also for people are people and let them marry. I balked at one judge here though. Martinez, Jeb assignations are in general fair, IMHO. But, I stopped at seeing Scott's Judge Mr Sleet. As limited Scott's support is on all things that I feel strongly for, I just think Scott's slanted Teabaggerism would taint anyone he would gleefully appoint.

    1. Hi, Sarasota. Great to hear from you! You make a fair point about voting no for a Scott appointee. I can see why you'd take that position. However, in a way it's like the Rs in Congress opposing anything President Obama wants to do just because it's Obama. I prefer to vote yes on merit retention unless the judge has demonstrated poor judgement in some way. Thanks for taking the time to share your thoughts!

  7. Thank you for sharing your opinion. I have been trying to research these Judges and their previous rulings to help with my decision, and have also not been able to find much information. (I'm in Pinellas).

  8. Hi, Pinellas! Thanks for taking the time to write. So glad to hear the post was helpful!

  9. Thank you fro your post and help regarding this matter.